State v. Marks

• Decision Date: 01 March 1990
• Docket Number: Cr. N
• Citation: 452 N.W.2d 298
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Debra K. MARKS, Defendant and Appellant. o. 890276.
• Court: North Dakota Supreme Court

Page 298

452 N.W.2d 298

STATE of North Dakota, Plaintiff and Appellee, v. Debra K. MARKS, Defendant and Appellant.

Cr. No. 890276.

Supreme Court of North Dakota.

March 1, 1990.

Schoppert Law Firm, Minot, for defendant and appellant; argued by Thomas K. Schoppert.

Merle A. Torkelson (argued), States Atty., Washburn, for plaintiff and appellee.

ERICKSTAD, Chief Justice.

This is an appeal by Debra K. Marks from a conviction in McLean County Court of driving while under the influence of intoxicating liquor in violation of section 39-08-01 of the North Dakota Century Code. We affirm.

In the early morning hours of January 15, 1989, Officer Ricky Richard of the North Dakota Highway Patrol stopped a vehicle for speeding on U.S. Highway 83 in the vicinity of Underwood, North Dakota. The driver did not produce a driver's license, but was identified as Debra K. Marks, the appellant in this case. Officer Richard detected a strong odor of alcohol on Marks' breath and noticed that her eyes appeared glassy and dilated. He asked her to come back to his patrol car for further evaluation and to show her the radar clocking. He attempted to conduct the nystagmus eye gaze test until he learned that Marks had a natural nystagmus in her right eye. Marks correctly recited the alphabet and properly performed a sequence of counting. Because Marks indicated that she had a previous back and neck injury, she was not required to do any physical tests. Marks was then placed under arrest and taken to the Turtle Lake Community Hospital for a blood test. The test showed a blood-alcohol concentration of 0.18 percent by weight.

A jury trial was held on July 12, 1989. Marks was found guilty of driving while under the influence of intoxicating liquor in violation of section 39-08-01, N.D.C.C. ¹ On July 18, 1989, Marks filed a motion for a new trial supported by brief and accompanying letter requesting an opportunity for oral argument. The matter was scheduled for oral argument on August 22, 1989. ² An order denying motion for new trial was entered on August 22, 1989, along with a judgment of conviction. Marks appealed to this Court from the judgment of conviction.

On appeal, Marks contends that the prosecutor made an improper comment at trial which shifted the burden of proof to the defendant, thus depriving her of a fair trial in violation of the Fifth and Fourteenth Amendments to the United States Constitution and equivalent state constitutional provisions, and that Marks was not allowed to submit instructions at the close of evidence or at an earlier time during the trial pursuant to Rule 30 of the North Dakota Rules of Criminal Procedure.

During the trial, Marks attempted to challenge the validity of the results of the blood test. The blood testing procedures used by the State Toxicologist's Office and the specific process used in this case were testified to by Daniel Pederson, a chemist from the Office of the North Dakota State Toxicologist. During closing argument, counsel for Marks repeatedly attacked the qualifications, knowledge, education, and expertise of Pederson. He also attacked the method used at the State Toxicologist's Laboratory in preparing the vials used for the blood testing and in the analysis of the preservatives used in the process. During final rebuttal, the prosecution responded by saying:

"Now, you also heard Mr. Pederson testify that they normally get at least ten milliliters of blood, in fact, in this case, they got eleven milliliters of blood. However, not all of that was used to conduct the test. There was some leftover. If Mr. Schoppert was so sure that there was something wrong with the way that Mr. Pederson did that test, he could have obtained part of what was left--."

Upon objection by defense counsel, the following colloquy occurred:

"MR. SCHOPPERT: Your Honor, I'm going to object to that and may I approach the bench?

"THE COURT: Yes, you may.

"(Discussion at the bench out of the hearing of the jury both counsel present) "MR. SCHOPPERT: This is an illegal shift of the burden of proof of the case to the defendant. I move for a mistrial. It's improper for the prosecution to state that. We don't have to test anything. That is an illegal shifting of the burden of proof in this case.

"MS. TORKELSON: No it's not. It's merely stating the burden.

"THE COURT: Overruled. You may proceed."

The prosecution continued with final rebuttal and Marks made no further mention of the alleged illegal shifting of the burden of proof until her brief in support of her motion for a new trial. On appeal, Marks contends that the statement made by the prosecution was an illegal shift of the burden of proof to the defendant akin to a comment on a defendant's failure to call witnesses. Counsel for Marks argues:

"The prosecutor in this case employed a procedural tactic by alluding to an 'empty chair' which is improper prosecutorial conduct. This tactic generally concerns the rule that the prosecutor may not comment on the defendant's failure to call witnesses or produce any evidence. See State vs. Taylor 425 A.2d 1231 (Rhode Island, 1981) Taylor refers to the case of State vs. Carson [sic Caron ] 300 Minn. 123, 218 N.W.2d 197 (1974) which sets forth the reasons why the prosecutor may not comment on a defendant's failure to call witnesses. It might suggest to the jury that the defendant has some duty to produce witnesses or that he bears some burden of proof. And, it might suggest [to] the jury that he did not call a witness because the defendant knew their testimony was unfavorable, i.e. the defendant did not test the sample because he knew it would be unfavorable. See also State vs. Parker 417 N.W.2d 643, 647 (Minn.1988). A proper objection was timely made in this case which preserves the record."

In response, the State argues that the allegedly improper statement was "invited" by Marks' attack on the aptitude of Pederson and on the methods employed by the Office of the State Toxicologist. The State also asserts that it was natural for it to remark on a theory which, despite a lack of any evidence to support it, was advanced by Marks, citing State v. Rickel, 69 N.D. 329, 286 N.W. 895 (1939).

In Rickel, the State, in rebuttal, made a statement to the effect that a witness, whose name the State had endorsed upon the information, was in California at the time of the trial, and, therefore, was unable to testify. Counsel for the defense objected to the statement, claiming that "it is not properly a matter for argument, there being no evidence offered on the subject nor explanation made of it prior to the State closing its case." However, this Court noted that defense counsel had mentioned to the jury that the State had not called two witnesses to testify. We said:

"If the counsel for the defendant attempted in his argument to the jury to make a point of the fact that a witness whose name was endorsed upon the information was not called to testify, it was natural for counsel for the State to remark that the witness was in California and could not be present. No harm has been shown even if the remark should not have been made. It was an explanation invited by the defendant himself. No prejudicial error has been shown thereby."

Rickel, 286 N.W. at 898.

In a more recent case, State v. Schimmel, 409 N.W.2d 335 (N.D.1987), the State, in closing argument, commented on the defendant's financial status. The defense objected that the comments were prejudicial and thus denied the defendant of a fair trial. We said:

"The state's attorney's comments about Schimmel's economic status and wealth were clearly in response to defense counsel's portrayal of Schimmel as a simple, unsophisticated man without much in the way of money. Because Schimmel invited this response by the state's attorney, he may not argue that these comments deprived him of a fair trial. See, e.g., Lawn v. United States, 355 U.S. 339, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Young, supra, at 1044-45 [United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) ]. To be prejudicial, absent a fundamental error, improper closing argument by the state's attorney must have stepped beyond the bounds of any fair and reasonable criticism of the evidence, or any fair and reasonable argument based upon any theory of the case that has support in the evidence. State v. Loyland, 149 N.W.2d 713, 731 (N.D.1967). 'He is allowed a wide latitude of speech, and must be protected therein. He has a right to be heard before the jury upon every question of fact in the case, and in such decorous manner as his judgment dictates. It is his duty to use all the convincing power of which he has command, and the weapons of wit and satire and of ridicule are all available to him so long as he keeps within the record.' Loyland, supra, at 731, quoting from State v. Gibson, 69 N.D. 70, 103, 284 N.W. 209, 225 (1939). Therefore, because Schimmel invited the state's attorney's argument, we do not believe that the comments by the state's attorney about Schimmel's economic means were improper and Schimmel was not prejudiced by them."

Schimmel, 409 N.W.2d at 342-43.

In the case at hand, Marks' main defense at trial was the lack of reliability of the blood-alcohol test and of the blood-alcohol testing procedures employed by the Office of the State Toxicologist. Marks had no evidence to support her contentions other than the testimony elicited from Dan Pederson on cross-examination. In light of the attack made by defense counsel, we believe that the response was almost predictable and as invited we conclude as in Schimmel that the comments were not improper and certainly were not prejudicial. ³

In addition we are not convinced that the remarks of the prosecution in this case rise to the level or are equivalent to the remarks in the two Minnesota cases cited to us by Marks, State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974) and State v. Parker, 417 N.W.2d 643 (Minn.1988). In Caron, the...